BILL ANALYSIS
AB 2707
Page 1
Date of Hearing: April 18, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2707 (Keene) - As Amended: April 3, 2006
As Proposed To Be Amended
SUBJECT : FUNERALS: RESTRICTIONS ON PICKETING
KEY ISSUE : DOES the FIRST AMENDMENT permit a prohibition on
picketing and RELATED forms of protest within 300 feet of a
funeral SERVICE?
SYNOPSIS
AB 2707 prohibits picketing and other forms of protest within
300 feet of a funeral service from the period beginning one hour
prior to the funeral service and ending one hour after the
service has concluded. The bill was prompted by the activity of
Rev. Fred Phelps, a Kansas pastor who has used funerals -
including most recently the funerals of American troops killed
in Iraq - to disseminate his anti-gay message and his belief
that the United States has been "taken over" by homosexuals.
Phelps apparently believes that the death of American soldiers
is God's punishment for a nation that tolerates and promotes
homosexuality. AB 2707 is modeled after several bills under
consideration or recently enacted in several other states and in
the United States Congress. Although this legislative response
is an understandable reaction to Rev. Phelps' behavior, it also
raise serious First Amendment issues. The ACLU, for example,
argues that this bill is overly broad in its sweep, and that
existing law already makes it unlawful to disrupt, disturb, or
interfere with a funeral service. This analysis, however,
concludes that the proposed restrictions pass constitutional
muster, so long as the bill is amended to ensure that the law
will not affect picketing activity that is unrelated to the
funeral service.
SUMMARY : Seeks to protect a family's interest in peacefully
mourning the loss of a loved one by prohibiting picketing and
other forms of protest at or near funeral services.
Specifically, this bill :
1)Makes it unlawful for a person to engage in picketing at a
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funeral during the period beginning one hour prior to the
funeral and ending one hour after the conclusion of the
funeral.
2)Provides for criminal penalties up to $1000 in fines or six
months in county jail.
3)Permits a court to provide injunctive relief and award
damages, including punitive damages.
4)Defines "picketing," for purposes of this bill, as "protest
activities" engaged in by any person within 300 feet of a
cemetery, mortuary, or church. Defines "protest activities"
to include oration or speeches, using sound amplification
targeted at funeral participants, displaying placards, signs,
or flags, or other similar material, or distributing
handbills, leaflets, or other written material, where such
activity is not a part of the planned funeral services.
EXISTING LAW:
1)Makes it a crime to disturb, obstruct, detain or interfere
with any person carrying or accompanying human remains to a
cemetery or funeral establishment, or engaged in a funeral
service, or an interment. (Penal Code section 594.35(d).)
2)Provides that the government may constitutionally impose
reasonable restrictions on the time, place, or manner of
protected speech, even in a public forum, provided that the
restrictions are (1) justified without regard for the content
of the regulated speech; (2) narrowly tailored to serve a
significant government interest; and (3) leave open ample
alternative channels for communication of the information
contained in the speech. (Ward v. Rock Against Racism (1989)
491 U.S. 781, 791; Clark v. Community for Creative
Non-Violence (1984) 468 U.S.288, 293; Planned Parenthood
Shasta-Diablo, Inc. v. Williams (1995) 10 Cal. 4th 1009.)
FISCAL EFFECT : This bill as currently in print is keyed
fiscal.
COMMENTS : According to the author, this bill was prompted by
recent protests at funerals around the country conducted by Rev.
Fred Phelps, pastor of the Westboro Baptist Church of Topeka,
Kansas. Rev. Phelps first gained national attention in 1998 for
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organizing an anti-gay demonstration at the funeral of Matthew
Sheppard, the gay college student who was beaten to death in
Wyoming. More recently, Mr. Phelps has held protests at over
100 funerals of American servicemen and servicewomen killed in
Iraq. According to media reports, Mr. Phelps and his
congregation sing songs and display signs proclaiming that the
soldiers deserved to die because they were defending a nation
that tolerates homosexuality. The signs displayed at these
funerals include such sentiments as "God Hates Fags" and "Thank
God for IEDs," the latter a reference to the roadside bombs that
have claimed the lives of American soldiers and innocent Iraqis.
Prompted by the antics of Rev. Phelps, a number of states have
already passed, or are considering, legislation to restrict
picketing and protests at funerals. At the national level,
Senate Bill 2452 (Bayh) would prohibit picketing at the funerals
of military personnel, and House of Representatives Bill 5037
(Rogers) would prohibit picketing at national cemeteries.
According to the author, this bill, like others being considered
around the nation, will protect the right of friends and family
members to say good-bye to loved ones with a private, dignified,
and peaceful ceremony.
Time, Place, and Manner Regulations : Even reasonable and
well-intended regulations of expression must pass constitutional
muster, and the mere offensive nature of the activity does not
justify prohibiting such expressions. Indeed, one of the
primary purposes of the First Amendment is to protect speech
that if offensive and objectionable to the majority, since no
one is usually opposed to the expression of pleasantries or
statements that everyone agrees with. This analysis, therefore,
focuses on the extent to which AB 2707 meets the requirements of
the First Amendment.
Both the U.S. and California constitutions guarantee the rights
of free speech and assembly. Those rights are not absolute.
Both the U.S. Supreme Court and the California courts have held
that government may impose reasonable restrictions on the time,
place, and manner of protected speech, even in a public forum,
so long as restrictions (1) are content neutral, (2) are
narrowly tailored to serve a significant governmental interest,
and (3) leave open ample alternative channels for communicating
the restricted speech. (Ward v. Rock Against Racism (1989) 491
U.S. 781; Clark v. Community for Creative Non-Violence (1984)
468 U.S.288). California courts have generally followed this
same test in evaluating the constitutionality of content-neutral
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speech. (See e.g. Planned Parenthood Shasta-Diablo Inc. v.
Williams (1995) 10 Cal. 4th 1009; City of San Jose v. Superior
Court (1995) 32 Cal. App. 4th 330; Savage v. Trammel Crow Co.
(1990) 223 Cal. App. 3d 1562; Dulaney v. Municipal Court (1974)
11 Cal. 3d 77.)
In determining whether or not a particular regulation meets the
content-neutral prong of the "time, place, and manner" (TPM)
test the court will primarily consider "whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys. The government purpose is the
controlling consideration." (Ward, supra at 792.) In Ward the
court held that a government regulation could be content neutral
"even if it has an incidental effect on some speakers or
messages but not others." (Id.) AB 2707 appears to meet the
content-neutral prong of the TPM test. According to the
legislative findings, the purpose of AB 2707 is to protect the
privacy of grieving families and to preserve the peaceful nature
of the funeral service. The viewpoint of the picketers, or even
content of their expressions, is irrelevant. Although Rev.
Phelps uses funerals of American troops to condemn toleration of
homosexuality, the government interest served by AB 2707 is not
to prohibit this or any particular message, but to respect the
privacy of the funeral attendees and the peacefulness and
solemnity of the occasion.
AB 2707 also arguably serves a significant government interest.
Article I section 1 of the California constitution protects a
right to privacy from both state and private actors; therefore,
the state has a significant interest in protecting the privacy
of a funeral service, which is for most a deeply and inherently
emotional and spiritual occasion. Because AB 2707 only
prohibits picketing within 300 feet of the funeral service
during the hour prior and hour after the ceremony, it leaves
ample alternative channels of communication. Protesters are
free to communicate their messages at any other time, or in any
location that is at least 300 feet from the funeral.
Is AB 2707 "Narrowly Tailored? " While AB 2707 appears to be
content-neutral, provide ample alternative channels of
communication, and serve a significant government interest, the
bill may not be drawn narrowly enough to meet the second prong
of the TPM test. As currently in print, AB 2707 makes it
unlawful to engage in "picketing at a funeral" within the
specified time restraints. The bill further defines "picketing"
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as any protest activities engaged in "within three hundred feet
of a cemetery, mortuary, or church." As the ACLU points out,
the current language of the bill is too broad in that it
literally bans every kind of protest activity within a 300 feet
zone. This bill could conceivably ban speech unrelated to the
stated legislative purposes. The ACLU writes:
AB 2707 bans speech that has no connection to
the funeral. For example, tax-cut supporters
could not hold a rally on a public plaza to
support the President's tax policies, if that
plaza was within 300 feet of a church that at
the time was the site of an unrelated funeral.
In short, the ACLU reasonably fears that AB 2707 will be
over-inclusive, prohibiting protected speech that has no
connection to the substantial government interest that justifies
the regulation.
Author's Amendment to Address One of the ACLU's Objections: In
light of these objections, the author appropriately proposes to
amend the bill to ensure that it will not prohibit speech with
no connection to the funeral. Specifically, Section 594.37
should read:
594.27 (a) It is unlawful for a person to engage in
picketing targeted at a funeral, during the time
period beginning one hour prior to the funeral and
ending one hour after the conclusion of the funeral.
The seminal United States Supreme Court case on "targeted
picketing" is Frisby v. Schultz (1988) 487 U.S. 474, which has
been followed by the California courts for state constitutional
purposes in City of San Jose v. Superior Court of Santa Clara
County (1995) 32 Cal. App. 4th 330. The California case
involved a provision of the San Jose Municipal Code (Section
10.09.010) that prohibits picketing that is "targeted at and is
within three hundred (300) feet of a residential dwelling."
(Id. at 333. Emphasis added.) The court in City of San Jose
upheld the ordinance because it was limited to targeted
picketing which the court explained is entitled to less
protection than other forms of speech.
Arguments in Support : Most of the letters that the Committee
has received in support of AB 2707 do not speak in terms of
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"time, place, or manner" restrictions or any other formal
constitutional tests. Rather, they come in the form of scores
of letters from the parents of military personnel, who are
serving, have served, and in some cases have died in Afghanistan
or Iraq. For these family members, the key issue is that
persons who are grieving the loss of a loved one - whether or
not that loved one died in the military or in some other fashion
- have a right to grieve privately, peacefully, and in a manner
that respects the dignity of the deceased and the emotional and
spiritual needs of the bereaved.
Arguments in Opposition: The American Civil Liberties Union
(ACLU) and the California Federation of Labor (CFL) oppose AB
2707 as overly broad and unnecessary. They raise a number of
substantial issues that warrant the Committee's attention.
First, the ACLU and the CFL both point out that "picketing" has
been defined very broadly by the courts to mean any effort "to
persuade or otherwise influence." (Citing Hill v. Colorado
(2000) 530 U.S. 703, 721-722.) Since picketing can be both
silent and peaceful, the opponents argue, this bill would
prohibit even peaceful and non-disruptive activity, such as a
single picket holding a silent vigil or quietly displaying a
single sign, no matter how inoffensive. It could, for example,
prohibit a labor union from picketing against the employment
practices of a cemetery or mortuary. This concern is at least
partially addressed by amending the bill to narrow it to
targeted picketing, as discussed above.
Second, opponents argue that the 300 foot buffer zone prescribed
by AB 2707 will create "super-sized no speech zones." They
argue that this will prohibit activity in public parks, plazas,
streets, and sidewalks that are within 300 feet of the funeral,
even though such places are traditional "public forums" where
restrictions on speech must be held to the highest scrutiny.
The opponents point out that the buffer zone upheld in Hill v.
Colorado was only eight feet. However, it should be noted that
while Hill did indeed uphold an eight foot buffer zone, it does
not follow that anything more than that is unconstitutional. In
the City of San Jose case, for example, the court upheld an
anti-picketing ordinance that created a 300 feet buffer zone
around residential dwellings, even though doing so prohibited
picketing on public streets and sidewalks. (City of San Jose,
supra.)
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Third, the opponents argue that AB 2707 is unnecessary because
Penal Code section 594.35(d) already makes it a crime to
disturb, disrupt, or interfere with any person engaged in a
funeral service. However, AB 2707 will cover activity - such as
several persons carrying signs - which might not rise to the
level of disruption as construed under the Penal Code but would,
nevertheless, intrude upon the privacy interests of the funeral
attendees.
Additional Author's Amendment : The author also proposes to
amend the bill to include in the definition of "protest
activities" the use of sound amplification equipment in a manner
that makes speech, or oration audible to participants in a
funeral.
REGISTERED SUPPORT / OPPOSITION :
Support
Blue Star Moms, East Bay Chapter # 101 (sponsor)
Scores of individual letters from parents of American servicemen
and servicewomen
Opposition
American Civil Liberties Union
California Labor Federation
California Federation of Teachers
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334